Wednesday, December 18, 2013

fleeting uses in documentaries are fair, 4th Circuit says

Bouchat v. Baltimore Ravens Limited Partnership, No. 12-2543 (4th Cir. Dec. 17, 2013)

Bouchat has been litigating against the Ravens and others for a long time based on the Ravens’ infringement (established after a jury trial) of his design for a Ravens logo.  The logo was in use only for the 1996-98 seasons, but ever since he’s been litigating over uses of the logo in depictions of those teams.

The Fourth Circuit previously found that the use of the logo in season highlight films and in a film played at the stadium wasn’t fair.  See Bouchat v. Baltimore Ravens Ltd. P’ship, 619 F.3d 301 (4th Cir. 2010) (finding that footage of the Flying B logo in season highlight films and in a short video shown on the large screen during Ravens home games was not fair use, but that the Ravens’ display of the logo in images in its corporate lobby was). The court of appeals is forced to distinguish that result from its affirmance of fair use in different films, making for a greater-than-usual emphasis on how case-by-case fair use must be. This creates some tension with the court’s additional concluding section about how important fair use is for First Amendment freedoms, and how courts therefore have to give secondary users significant leeway, and its introductory statement that “[a]ny other result would visit adverse consequences not only upon filmmaking but upon visual depictions of all sorts.”

The court of appeals first affirmed the finding that fleeting use of the logo in three videos shown on the NFL Network and various websites, including Hulu, was fair use.  Two of the videos were part of the Top Ten series, each of which features a countdown of ten notable people or events in NFL history (of relevance here, one featured the Ravens’ 1996 draft class as one of the ten best draft classes of all time, while another featured a Ravens player as one of the ten most promising draftees who didn’t pan out).  The third was part of the Sound FX series, providing viewers with “an inside look at the sights and sounds of the NFL through players who wear microphones.”  Although the court spends a lot of time on each film because of the case-by-case trap it’s entered, the basics are this: each film offers a recounting and at least a minimal interpretation of various historical events in the NFL, of which the Flying B logo is a minimal part.  In the 1996 draft class video, the logo is visible twice for less than a second, once on a banner and a helmet at the opening of the segment, and again on the side of a helmet, in what the court characterizes as “exceptionally brief” appearances.  The relevant segment of the draft busts program features a St. Louis Rams player; at the end of the segment, a Ravens player tackles him and “it is possible to catch a glimpse of the Flying B logo on the player’s helmet if one chances to look at it for the fraction of a second it is visible.”  (For what it’s worth, as a non-fan I couldn’t figure out which second this was.)  The third video has a two-minute segment on Ravens linebacker Ray Lewis at training camp; during eight seconds, the Flying B logo is visible on some players’ helmets, and twice in other segments the Flying B logo is partially visible for less than a second when he makes a tackle.

[screenshot from Top Ten Draft Classes video]
Bouchat argued that the film clips here were materially indistinguishable from the infringing highlight videos from the previous round.  The use of the Flying B logo was nontransformative because it was “being used in the same way in these videos as it was in the infringing videos in Bouchat IV: to identify Ravens players.”

The court of appeals disagreed.  Transformative works “rarely” violate copyright rights because copyright’s goal of encouraging new works is generally furthered by their creation.  Transformative works add something new to the original purpose of the copied work.  Here, each of the videos was intended to “present a narrative about some aspect of Ravens or NFL history.”  The draft classes video “recounts the Ravens’ 1996 draft, documenting football’s return to Baltimore, the team’s strategy for the 1996 draft, and the impressive result of its efforts.”  The draft busts video “recounts the disappointing path of Lawrence Phillips’s once promising career, complete with interviews, game tape, and news footage.”  And the Sound FX video “provides an inside look at the career of Ray Lewis through the sights and sounds that accompanied his play.”  In each instance, the use of the logo differed from its original purpose.

The logo “initially served as the brand symbol for the team, its on-field identifier, and the principal thrust of its promotional efforts,” but none of the videos used the logo to serve those same purposes.  Instead, like the historical displays found to be fair use in Bouchat IV, “these videos used the Flying B as part of the historical record to tell stories of past drafts, major events in Ravens history, and player careers.”  (Citing Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d. Cir. 2006) (finding that Grateful Dead posters served as “historical artifacts” that helped readers to understand biographical text).)  The logo was used not for its expressive content, but for its factual content, and plainly added something new.  Physical transformation of the logo was unnecessary.

Transformativeness was reinforced by the “exceptionally insubstantial presence of the Flying B logo in these videos.”  (One reason this decision is nothing much to celebrate: it, like the recent Faulkner decision, has converted de minimis use into just another fair use cluster, continuing the trend of packing everything and the kitchen sink into fair use.)  The “vast majority” of its appearances were for only a fraction of a second, and you’d have to be looking for it to see it.  The extent of use can bear on transformativeness. “The Flying B logo cannot be said to serve its original function of identifying the Ravens players and organization if it is all but imperceptible to those viewing the videos.”  Its function isn’t expressive but historical, “within videos that construct new narratives about the history of the Ravens and the NFL.”  The longest use is under ten seconds, but that video is “replete with countless images of the Raven Profile logo,” which now serves the former expressive purpose of the Flying B.  Its incidental use was therefore transformative.

OK, you may ask (and Bouchat did), but how does this differ from the infringing highlight reels from Bouchat IV?

In reality … the uses are strikingly different. In the season highlight films from Bouchat IV, the logo was shown again and again, always as a brand identifier for the Ravens organization and its players. As we found, the logo simply replicated its original function when footage of the seasons was shot, condensed, and reproduced in a summary film.

Thus, the season highlight videos “did not change the way in which viewers experienced the logo, making the use non-transformative.” But here, the videos used historical footage to “tell new stories and not simply rehash the seasons.”  That’s a transformative use of the Flying B logo for its factual content.  (Ugh.  I mean, better a fair use finding here than not, but I do not understand why a straight-up historical summary of the season isn’t equally transformative and factual, other than that the NFL isn’t allowed to do it; I would hope an independent historian would get a different result.  I see shades of the appalling interpretation of transformativeness going on in publicity rights, discriminating against visual realism even though the court tries to prevent that.)

The other “[e]qually important” distinction was that the logo was “featured substantially, again and again, in the season highlight films,” but “it was used only fleetingly and insignificantly here. Its function as an identifier was significantly diminished, limiting its expressive value.”

Bouchat IV offered two hypotheticals that the court here thought showed that it was right:

In finding that the season highlight videos were not fair use, we laid out two different viewer experiences: In the first, an individual at home in her living room in 1996 watches a Ravens football game on television. The Flying B logo on the helmets of one team helps her identify the team as the Ravens. In the second, an individual at home today (2010) in his living room watches the 1996 Ravens season highlight film. The Flying B logo on the helmets of one team helps him identify the team as the Ravens. The logo plays the same role in each example. Its purpose is not transformed in the highlight film, viewed some fourteen years later.

It turns out that “transformativeness” in purpose reduces to the amount of time on screen: in the season highlight videos, the Flying B “still served the purpose of identifying the team as the Ravens as they play opponents -- its core and crucial function. But in the Top Ten and Sound FX videos, where it is rarely visible for more than a second, it cannot possibly serve as a meaningful identifier of the franchise.” 

(Another way to understand the contortions of this opinion is that the rejection of fair use in Bouchat IV was based on a trademark theory of value—it is trademark, after all, that protects identification function.  I cannot figure out how to distinguish “identification function” and “historical identification function” as the court here seems to want to; I think that’s why the court constantly returns to the brevity of the use.)

After transformativeness, all follows smoothly. Commerciality is “largely insignificant” when there’s substantial transformativeness.  And the limited nature of the use of the logo also meant that the commerciality of the overall video wasn’t significant.  “The key inquiry is the extent to which the Flying B logo itself – and not the videos as a whole – provides commercial gain to the NFL.”  Here the use was “incidental to the larger commercial enterprise of creating historical videos for profit,” and the role of the logo in facilitating profit was “unquestionably minimal.”

As to bad faith, Bouchat argued that prior findings of infringement counted against defendants. But “good faith” isn’t listed in §107, and “it is questionable whether allegations of subjective ‘bad faith’ could undercut a use that objectively was fair.” Even assuming that they could, the district court found that defendants had a good faith belief that they were engaging in fair use, and the court of appeals saw no reason to disturb that factual finding.  Bouchat IV weighed past infringements against defendants because of the lack of transformation.  “Here, because the use is transformative, any past infringement is simply inapposite.”

Nature of the work: the use wasn’t related to its expressive content but to its historical facts, making factor two neutral.  Factor three didn’t help Bouchat.  “Here, the NFL had no choice but to film the whole logo in order to fulfill its ‘legitimate transformative purpose’ of creating the historical videos at issue…. It would be senseless to permit the NFL to use the Flying B logo for factual, historical purposes, but permit it to show only a half, or two-thirds of it.”  Market effect: transformative use makes market harm unlikely to occur.  Given defendants’ decisive victory on factor one, the other factors were “largely neutral.”

The court of appeals paused to justify its decision with reference to “the underlying interests that inform copyright law and its relationship to the First Amendment.”  The primary goal of copyright is to benefit the public, which means balancing the rights of authors with the interest in the free flow of ideas.  “[C]reation itself is a cumulative process; those who come after will inevitably make some modest use of the good labors of those who came before.”  (Citing the MPAA’s amicus brief, which I’m allowed to find amusing.)

Fair use, then, is crucial to the exchange of opinions and ideas. It protects filmmakers and documentarians from the inevitable chilling effects of allowing an artist too much control over the dissemination of his or her work for historical purposes. Copyright law has the potential to constrict speech, and fair use serves as a necessary “First Amendment safeguard[]” against this danger.

What about the case-by-case nature of the fair use inquiry?  This can deter free speech.  “As a result, fair use must give speakers some reasonable leeway at the margins.”  (How this is to be squared with Bouchat IV is left as an exercise for the reader.)  The videos in suit “share the qualities of other historical documentaries. They feature three key components: archival footage, commentary, and interviews. These ingredients are crucial to the creation of any historically accurate film.”  They aligned the videos with the “criticism, comment, news reporting, teaching . . . scholarship, or research” of §107’s preamble. 

Requiring permission for “fleeting factual uses” would give copyright owners too much control over depictions of history. “Social commentary as well as historical narrative could be affected if, for example, companies facing unwelcome inquiries could ban all depiction of their logos.”  (But if you have a documentary about Coca-Cola, can you make more than “fleeting” uses?)  The “logical outcome” of Bouchat’s position would be lower accuracy, increased transaction costs, and fewer new expressive works. “[J]ust as it would have been a terrible shame to prevent Edward Hopper from painting the ‘Esso’ sign in his masterful Portrait of Orleans, so too would it be a mistake to prevent the NFL from using the Flying B logo to create new protected works.” Maybe the NFL is a less sympathetic defendant than Hopper, but this case has implications far beyond its facts. “Society’s interest in ensuring the creation of transformative works incidentally utilizing copyrighted material is legitimate no matter who the defendant may be.”

Given all this, the result of Bouchat’s claims against what the court calls “the incidental use of the Flying B logo in certain historical displays located on the ‘Club Level’ of the Baltimore Ravens’ stadium” is also foreordained.  The Club Level is only accessible to people who buy tickets priced between $175 and $355 per game. The displays at issue were “a timeline, a highlight reel, and a significant plays exhibit” covering over a hundred years of history, and the Flying B logo played an incidental role in only a fraction of the historical events depicted. 

Bouchat IV caused some debate because of its reference to how the displays approved there were in a “museum-like setting,” but that didn’t actually matter to whether the displays here were transformative. “Collectively, the displays provide a multi-faceted portrait of the evolution of professional football in Baltimore. The Flying B logo is included merely as an incidental component of this broader historical narrative,” rather than as a focal point of promotional efforts.  It was also true that Bouchat IV relied heavily on the fact that the displays there were open to the public free of charge, but the exclusivity of the Club Level wasn’t dispositive. “The Club Level displays … produce what is essentially an atmospheric effect. They are a negligible, fringe benefit of club membership. The gourmet food, shelter from the elements, and view of the game – not some miniscule aspect of the wall decor – provide the primary motivators for purchasing a Club Level ticket.”  In particular, no one is paying hundreds of dollars to see the Flying B logo.  “The mere use of a logo in a profit-making venture … is quite different from its commercial exploitation.”  Thus, both transformativeness and commerciality cut “decidedly in favor of fair use.”

While the district court made no findings on a licensing market for historical logos, “findings in Bouchat’s favor on this point would be insufficient to overcome the substantial weight of the first three factors.”  And without market data, the fourth factor was neutral.  (Compare Campbell, finding that it was defendant’s burden to produce evidence, in the absence of which summary judgment was inappropriate.  The lower courts have basically, and correctly on the merits, decided that the Supreme Court couldn’t really have been serious about that.)

Finally, after reiterating its First Amendment concerns, the court said that its decision “provides no support for a fair use defense where the alleged infringer exploits a protected work for profit based on its intrinsic expressive value.”  But here, the uses “were not only transformative, but also – take your pick – fleeting, incidental, de minimis, innocuous.”  Protecting historical documentaries and displays, and their makers, required this result.

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